With hundreds of thousands of patents (around the world) on mobile technology, including SEPs, one is unable to operate without being sued ad infinitum
Reference: Patent thicket
Summary: The war against commoditisation of mobile computing has turned a potentially thriving market with fast innovation rates into a war zone full of patent trolls (sometimes suing at the behest of large companies that hand them patents for this purpose)
THE MOBILE market (as in mobile phones, connections etc.) is a sordid mess when it comes to patents. It’s so saturated with patent thickets that one is unable to operate without being sued (or simply overtaxed) from every single direction. Simple devices now cost more than a sophisticated personal computer (where patents are expired or barely enforced anymore).
“Simple devices now cost more than a sophisticated personal computer (where patents are expired or barely enforced anymore).”As mentioned in this older post of ours, Samsung now need to pay a lot of money to Rembrandt Wireless (Rembrandt Wireless Technologies LP), which is a patent troll that relied on a jury in Texas (the capital of patent trolling). Here is one new article about it:
The US Court of Appeals for the Federal Circuit remanded part of a patent suit earlier this week, meaning that Samsung may not have to pay the full $15.7 million in damages to Rembrandt Wireless.
Handed down on Monday, April 17, the Federal Circuit’s ruling disagreed with the district court’s denial of Samsung’s motion based on the marking statute, so it remanded the issue.
Samsung is not even an American company, it is Korean.
“Will we finally see the demise of Qualcomm, which is a relic that has been reduced to just patent aggression?”To make matters worse, a ‘supertroll’, Qualcomm [1, 2], has been grabbing a lot of money (possibly billions) from Samsung and only a decade too late Judge Lucy Haeran Koh, an American judge of Korean descent, decides to look into the case. As Florian Müller put it the other day: “After last week’s joint case management statement in FTC v. Qualcomm (Northern District of California), Qualcomm filed a revised proposed schedule on Monday. Judge Koh had denied a stay of discovery and asked Qualcomm to revise its proposed schedule accordingly. Now Judge Koh has set a schedule that is materially consistent with the FTC’s proposal and a lot more ambitious than Qualcomm’s revised schedule (this post continues below the document)…”
Will we finally see the demise of Qualcomm, which is a relic that has been reduced to just patent aggression? IAM, the voice of patent trolls, says this week that “Qualcomm reveals $150 million dispute with licensee as it provides more detail on Apple lawsuit” and here is the key part:
There was plenty to discuss yesterday on Qualcomm’s call with analysts concerning the company’s latest quarterly results. On the positive side the company is in the final stages of its acquisition of NXP Semiconductors and reported that it is seeing strong sales in China, a market where it has had some well-publicised problems.
But throughout the call there was an Apple sized cloud hanging over the discussions as the company updated its position in its high-profile dispute with the iPhone manufacturer. It also revealed an additional dispute, unconnected with the Apple case, with an additional, unnamed licensee, which has resulted in an underpayment in royalties of more than $150 million.
That’s a lot of money. Apple is challenging this and we hope that Apple wins because it would also help Android OEMs if Apple got its way.
Meanwhile, as per Apple advocacy sites, patent troll Acacia is at it again. It is a patent troll with Microsoft connections and according to Apple Insider, “Apple and a handful of partner cellular carriers are the target of a new lawsuit leveled by Acacia Research subsidiary Cellular Communications Equipment, which alleges the iPhone maker infringed and continues to infringe on four patents developed by Nokia covering messaging, emergency alerts and other key cellular technologies.”
“Apple is challenging this and we hope that Apple wins because it would also help Android OEMs if Apple got its way.”A day earlier Apple Insider wrote that “Apple settles Unwired Planet patent suit for undisclosed amount” (via). Unwired Planet is a patent troll that now operates in Europe, too (it does for Ericsson what MOSAID/Conversant does for Microsoft through Nokia). It recently got its way in London and Germany is already attracting lots of patent lawsuits (many of which are initiated by trolls now), from companies that are not even German. Whose system is this? Here is a new press release titled “Motorola Solutions Files Patent Infringement Complaints in Germany Against Hytera Communications and Hytera Mobilfunk” (another case involving mobile).
Regarding the troll lawsuit in London, which we covered here very recently, this new guest post by Prof. Mark Patterson from Fordham Law (patent maximalists) covers it by promoting FRAND patent thickets. It’s mostly FRAND advocacy but it is supporting a notorious patent troll in the process. Here is the outline: “Last week Professor Jorge Contreras provided here an excellent summary of the April 5 decision of Mr. Justice Birss of the UK’s High Court of Justice in Unwired Planet International Ltd. v Huawei Technologies Co. Ltd.,  EWHC 711. The case addresses the problems that arise in determining FRAND (fair, reasonable, and non-discriminatory) licensing terms. Professor Contreras highlighted several novel aspects of the decision.”
“In China right now there is not a thicket but smog of low-quality patents.”What we have here is a disturbing passage of trolling venues into Europe (for which the EPO can be partly blamed). The same thing is happening in China, which the EPO seems to be imitating. In China right now there is not a thicket but smog of low-quality patents. SIPO’s quality control is a joke, resulting in protectionism for massive corporations that create a patent thicket in China. Here is Huawei, a government-connected company, having a go against Korea’s government-connected company and getting its way in Chinese courts. To quote government-connected Chinese press: “Huawei Technologies Co Ltd scored another point in its patent fight with its rival Samsung Electronics Co Ltd in China, which may weigh down on the South Korean company’s business in the world’s largest smartphone arena.” As IAM admitted yesterday, patent lawsuits in China skyrocket due to SIPO’s policy (patent microcosm profits at the expense of real workers). IAM says that “civil patent litigation cases increased by 20% compared to last year.” It also says “we’ll be getting a lot of statistical insight into China’s relatively closed court system in the coming days as the Supreme People’s Court releases white papers summing up how many IP case were filed and by whom in 2016.”
“This is anything but desirable and it’s antithetical to the patent system as it was perceived at the time of inception.”What it all boils down to is more patents and a lot more patent lawsuits over mobile devices; each such lawsuit will ultimately artificially elevate the price of phones and money will typically end up in the pockets of lawyers, not technologists. At the same time phones will have featured removed from them (intentionally hobbled), meaning inferior products available in the market. This is anything but desirable and it’s antithetical to the patent system as it was perceived at the time of inception. █
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…Hardware (chipsets) and software alike, with dubious software patents that accompany them, have made phones incredibly expensive
Summary: By tackling the practices of Qualcomm and by dragging companies to court over ridiculous design patents (potential of blanket ban by the Supreme Court) Apple weakens the very business model it will need to rely on as its market diminishes, leaving it with nothing but patents
THE mobile market is worth a lot of money these days. The exact numbers depend on how it’s measured and what exactly gets included in the measure. But no doubt more and more people now turn to mobility. Many sales are made in it, both of devices and software (licensing). Apple’s sales are declining and many of the headlines we come across (when it comes to Apple at least) are about new patents and patent applications from Apple. Perhaps that’s just Apple’s vision/foresight of its future. It want to prey on OEMs that are actually shipping a lot of phones (Huawei for example). This is why Microsoft, for example, attacked Samsung in the courts — using software patents of course — and then virtually forced Samsung to become its vassal. It’s a strategy of coercion. A lot of patent battles are now focused/centered around the mobile market (connections, interfaces, touch-enabled devices, navigation and so on) as many companies try to turn a pile of patents into revenue without actually creating anything. Qualcomm is a good example of this.
“It’s a strategy of coercion.”Qualcomm's management seems growingly nervous about the antitrust action in various places as well as the lawsuits/complaints [1, 2], notably Apple‘s. The $815m BlackBerry arbitration, which was mentioned here the other day, gets a mention in patent maximalists’ sites and Florian Müller took note of it after we had sent him some links related to it. It seems possible, albeit it’s subjected to the Supreme Court’s instincts, that another Apple case against Android will reach the Supreme Court (SCOTUS). As Müller put it just before Easter (taking special note of the role of CCIA):
One organization that has previously supported Samsung against Apple, the Computer & Communications Industry Association (CCIA), appears to have decided not to get active again at this stage. But in case certiorari is granted, I wouldn’t be surprised to see CCIA get involved again. With respect to design patent damages, CCIA’s work was really great. But even CCIA may at some point experience such a thing as litigation fatigue: the Apple v. Samsung dispute is now six years old.
Samsung’s design patents-related petition was exceptional. It had tremendous support and, since it raised sort of a once-in-a-century type of issue, it was a slam dunk (to the extent that a cert petition can be a slam dunk at all, given overall stats). The fact that certain amici who supported Samsung on design patents aren’t on board this time doesn’t mean that the three issues raised last months aren’t also certworthy in their own ways and their own right.
We wrote about this case many times before and if it reaches SCOTUS, then we definitely expect the patents to be challenged and quite likely invalidated, as per the pattern of recent SCOTUS decisions on patents. If that happens, what will Apple be left with? Apple is the next Qualcomm. █
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A company stuck in the past with nothing but a pile of patents (like Nokia)
Summary: The days of Qualcomm’s cash cow (a bunch of standard essential patents) may be numbered, as US, EU and Korean authorities belatedly look at the company’s practices and Qualcomm already caves
Qualcomm’s de facto monopoly (in the patents sense), as we’ve covered here before [1, 2], means that people pay Qualcomm a lot of money even when they buy nothing from Qualcomm. In some sense, Qualcomm does in chipsets what Microsoft does in software. It demands ‘protection’ money from just about everyone and it also has patent trolls to help punish for ‘noncompliance’ with unreasonable demands.
“It demands ‘protection’ money from just about everyone and it also has patent trolls to help punish for ‘noncompliance’ with unreasonable demands.”Not too long ago Qualcomm came under fire from Apple, even though it had abused many other companies. Florian Müller had a peek at the latest documents and found Qualcomm claiming “credit for enabling Pokémon GO,” which is of course nonsense. To quote Müller:
As the number of pages (the original complaint was approx. 100 pages, now the answer and the counterclaims fill 140 pages) shows, this is a huge commercial litigation and threatens to turn into a battle of materiel. Both parties have enlisted multiple major law firms. The first surprise here is that Quinn Emanuel is among the three firms representing Qualcomm, given that Qualcomm’s filing (in paragraph 192 of the counterclaims part) accuses Samsung–another company QE is defending against Apple–of sharing (with Apple) “a common interest in diminishing Qualcomm’s ability to obtain fair value for its innovations” and trying “to avoid paying fair value for Qualcomm’s intellectual property and to impede Qualcomm’s licensing program.” I wonder how Samsung feels about its own lawyers not distancing themselves from such allegations…
Is Qualcomm trying to suck up to the Japanese and Korean regulators with this “Pokémon GO” fairy tale? As one Android-centric site put it, Qualcomm has “Big Trouble in Little Korea” and an Apple-centric site said that “[i]n a 134-page filing with the U.S. District Court for the Southern District of California, Qualcomm provides a point-by-point rundown of Apple’s January lawsuit, denying a total of 389 allegations.”
“Is Qualcomm trying to suck up to the Japanese and Korean regulators with this “Pokémon GO” fairy tale?”What we have here are two patent bullies fighting one another and it’s clear that only law firms are guaranteed to win, as usual (parasites can’t lose).
Qualcomm to Pay BlackBerry
Meanwhile, as emerged in the news last night [1, 2, 3], Qualcomm will need to shell out a lot of money. BlackBerry, which has itself become akin to a patent troll (both directly and indirectly), expects to receive nearly a billion dollars from Qualcomm. “BlackBerry awarded $815 million in arbitration case against Qualcomm,” says a headline one reader sent to us about it. Might Qualcomm need to refund even greater amounts of money to other firms?
Florian Müller published another article earlier today, having watched this case rather closely. “Qualcomm does not want European and Korean antitrust proceedings to impact its FTC litigation,” says the headline. Like Intel and Microsoft, Qualcomm has come under incredible scrutiny in several continents and the effect can be devastating to a company that depends so much on patents rather than actual products. To quote Müller:
Qualcomm, which would have us believe we couldn’t even play Pokémon GO if not for its wireless technologies, is fighting a global, multi-front war against regulators, industry players and consumers (who are piggybacking on the FTC case in Northern California).
On one of those fronts, BlackBerry just won an arbitration award over $815 million. Unfortunately, arbitration is opaque, so the legal basis for this is unclear, other than BlackBerry having claimed to have paid too much in license fees during an unspecified past period. The kind of wrongdoing here is totally unclear, and we also don’t know what an appeals court would have decided. Still, the $815 million award, which is final and binding, has made BlackBerry’s share price soar by 12%. For the Canadian company, it’s a huge amount of money. For Qualcomm, it’s also a very significant amount, but the bigger problem is that every independent finding of Qualcomm having overcharged someone makes it harder for Qualcomm to convince the courts of law and the court of public opinion that it’s just being bullied by the likes of Apple and Samsung and that all those antitrust enforcers have all just been misled by sore losers in the marketplace and by evil companies denying Qualcomm a fair compensation for its innovations.
This concern is real. A joint case management statement filed yesterday by the FTC and Qualcomm–”joint” in terms of being a single document despite virtually zero convergence on substantive questions–in the Northern District of California shows that Qualcomm is indeed concerned about how the various parallel proceedings could influence each other.
The above already mentions the news about BlackBerry, which is important. Is Qualcomm on the run from regulators?
Unfair and Unreasonable
“Apple’s challenge to Qualcomm is already having a positive impact, which is why we said we would support Apple right from the start (in this case alone).”So-called standard essential patents (SEPs) or RAND or FRAND are a subject we’ve covered here many times before. Last night IP Kat said that “It ha[d] been a busy couple of weeks for standard essential patents (SEPs)… and now we have the European Commission’s roadmap on SEPs.”
“FRAND is already in DSM,” Benjamin Henrion explained, “don´t know what is the status of this directive…”
Well, if SEPs like Qualcomm’s lose their legitimacy, the effects would be enormous and also impact software companies. In China, based on what IAM said earlier today, the subject of SEPs and patent trolls that wield them (like Ericsson in Europe) is being brought up and scrutinised. To quote:
We’ve seen a major patent pool introduce a new royalty rate structure aimed at enticing more developing-market implementers to get involved, the first foreign NPE officially enter China through a joint venture agreement, and Apple directly challenging the licensing terms Qualcomm agreed on with Chinese regulators. And, of course, the Beijing IP Court issued the country’s first SEP-based injunction against Sony.
Apple’s challenge to Qualcomm is already having a positive impact, which is why we said we would support Apple right from the start (in this case alone). Companies like Qualcomm offer far too little to society but more importantly, they set a dangerous precedent to be exploited by all sorts of other companies and harm productive companies. █
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Watch what role IAM is playing here…
Summary: Linux-powered operating systems are under attack from software patents in China and in Europe while sites like IAM do everything they can to promote patent trolls, the UPC, and other aggressive means of extracting money from one’s competition
CONTRARY to what Margot Fröhlinger claims on behalf of Battistelli, the UPC would not be desirable to Asian companies. Some of them already suffer from patent trolls in Europe as well as in Asia — a problem to be further exacerbated by UPC-like regimes.
“The operating systems are Tizen and Android.”Published a few days ago by the EPO's eternal mouthpiece was this article which conflates software patenting with “pro-innovation line”; It says that “SIPO guidelines [...] on business method and software claims [...] looks to boost its burgeoning internet and e-commerce sector,” but in reality it just means more trolling and litigation. China’s patent maximalism, as is evidenced from the news a day or two ago [1, 2, 3, 4, 5], punishes Korean giants. These software patents from China are now being used against Samsung. ChannelNews said that “Huawei Wins $15.4m Patent Case Against Samsung” over “fourth-generation (4G) cellular communications technology, operating systems and user interface software…”
The operating systems are Tizen and Android. As CNET notes in its own coverage of this, it comes almost in conjunction with a “separate case [in which] Huawei has been warned by the UK High Court to pay a global license fee for patents from US software company Unwired Planet to avoid intellectual property infringement in the UK or risk being barred from selling its phones…”
“We urge readers to keep abreast of what IAM is cheering for here: trolls and UPC. Both are funding sources of IAM.”This case, as we noted here before the weekend, demonstrates that patent trolls are penetrating London and succeeding there. A ‘unitary’ effect would be even more devastating.
The spinners from IAM, however, see it differently (they are paid to see it differently). “Huawei case also shows that in addition to Germany NPEs can get injunctions in the UK in FRAND/SEP cases. That’s Europe’s big 2 venues sorted [...] And this is without the UPC,” they noted. “If that does get up and running, there will be a number of British and German judges on the bench.”
We urge readers to keep abreast of what IAM is cheering for here: trolls and UPC. Both are funding sources of IAM.
“Bristows are some of the worst liars out there, so anyone pursuing a “piece” or “paper” from them is looking for nothing but propaganda.”Recently, IAM has been cheering for the trolls of Ericsson almost every day. They’re attacking. Their target (defendant) is Linux/Android. Two days ago, IAM promoted Ericsson’s patent troll (Unwired Planet) even twice in a single day, serving to reinforce IAM’s role as the trolls’ propaganda rag. They refer to the troll as “NPE Unwired Planet” and also say that “IAM commissioned a piece from UK law firm Bristows…” (so the EPO pays a PR firm, which in turn pays IAM, which then pays Bristows, which also happens to lobby for the trolls’ dream, the UPC).
Bristows are some of the worst liars out there, so anyone pursuing a “piece” or “paper” from them is looking for nothing but propaganda.
“We previously noted that Ericsson and Microsoft now use a similar strategy — the strategy of passing patents for trolls to attack rivals.”Well, such is the nature of IAM and its neighbourhood. They’re a propaganda mill disguised as 'news'. In their latest issue, as usual, they are whitewashing Microsoft’s patent racketeering and stating: “Based on different continents and very different in size, Microsoft and Fractus are united by a sophisticated understanding of IP value which is delivering tangible results. Others would be well advised to heed their example…” (advocacy of patent trolling, courtesy of the trolls-loving friends at IAM).
We previously noted that Ericsson and Microsoft now use a similar strategy — the strategy of passing patents for trolls to attack rivals. This isn’t innovation; it’s just aberration. █
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Samsung was the largest Android OEM when it all started
Microsoft’s embrace and extend strategy with patents (for coercion under legal threats)
Summary: The ‘new’ Microsoft turns out to be the same old Microsoft, where software patents are used not just for extortion and extraction of ‘protection’ money but also to compel OEMs to use Microsoft’s own ‘version’ (or distribution) of Android
THE EPO scandals are certainly outrageous, but another outrageous thing which we have spent more than a decade covering is Microsoft’s patent blackmail against GNU/Linux. Recently, we took note of another wave of Microsoft patent attacks (albeit shrewdly marketed as “IP Advantage“) on GNU/Linux and Free software. For those who missed it, there is a listing of our articles about it [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11], which will soon be shelved in some Wiki page.
“Recently, we took note of another wave of Microsoft patent attacks (albeit shrewdly marketed as “IP Advantage“) on GNU/Linux and Free software.”In short, Microsoft is trying to divide the market into “safe” and “unsafe”, or “protected” (from Microsoft and its trolls) and “unprotected”. The former requires annual or monthly payments to Microsoft (subscription plus patent royalties, similar to Novell with SLES/SLED in 2006 onwards). In the mobile space, as one might expect, Microsoft is using a similar strategy. Microsoft will be Microsoft. It will continue to embrace and extend, then attempt to become an Android OEM while siccing patent trolls on all others. 3 years ago Microsoft sued Samsung, the biggest Android OEM at the time, using patents and then they settled, with the condition/provision of Samsung being Microsoft’s slave, preinstalling Microsoft malware (sends user data to Microsoft) on Samsung’s Android devices. We never forgot about that, but Mary Jo Foley seems to have conveniently left that out of her new article. She ought to know this because she covered the subject of the lawsuit pretty well 2 years ago (she was one of our primary sources at the time, hence we reproduce her article at the top). What is shown now is that “Microsoft touts Microsoft-customized edition of Samsung Galaxy S8″.
So Samsung’s ‘flagship’ product is becoming just a vessel or a carrier of Microsoft malware. Does Microsoft pay Samsung for this? No. That’s just part of the patent settlement we presume. And Microsoft is now selling these phones, i.e. making a profit as an Android OEM, where Android is not really Android but some ‘bastardised’ version of it which is dominated by Microsoft and designed to give Microsoft total control of everything (collecting input from the file system, cameras, microphone and so on).
“And Microsoft is now selling these phones, i.e. making a profit as an Android OEM, where Android is not really Android but some ‘bastardised’ version of it which is dominated by Microsoft and designed to give Microsoft total control of everything (collecting input from the file system, cameras, microphone and so on).”Is this justice? Is Samsung happy about this?
In the meantime, Florian Müller writes about another patent bully that victimised Samsung, namely Qualcomm with its software patents [1, 2]. To quote some relevant parts:
When routinely checking for Twitter news about Qualcomm’s antitrust issues, I found a job ad for an antitrust counsel at Qualcomm. Seriously, if you’re an antitrust lawyer looking for a job, this might be one of the most interesting places to be in the months and years ahead. While some secondary issues such as a case brought over oversight duties go away from time to time, various regulators on multiple continents are currently doing everything to provide job security for San Diego-based antitrust attorneys…
At first sight, that denial appears to be complete and clear, but at a closer look it doesn’t convince me. Apart from the fact that Qualcomm obviously could never admit to totally anticompetitive behavior (restriction of competition), in this case going back to an agreement signed in 1993 and failed negotiations a few years ago, the denial merely says that Samsung could somehow have sold chips to third parties, but not that Samsung could have sold, for example, CDMA-capable chips to third parties.
As AndroidAuthority notes, Qualcomm sued a Chinese Samsung customer (Meizu), which built some devices incorporating Samsung’s Exynos chipset, and I agree with AndroidAuthority that “we have to wonder why the Korean giant only sells its mobile SoCs to one small company in China” (in light of Samsung’s large customer base for other types of chipsets).
This is why phones have become so incredibly expensive (manufacturing of the underlying components is not expensive). It boils down to patent tax everywhere. That money one pays for an Android device ends up not entirely in the coffers of the OEM but all sorts of patent parasites, including Microsoft.
“That money one pays for an Android device ends up not entirely in the coffers of the OEM but all sorts of patent parasites, including Microsoft.”Microsoft does not want the patents challenged in a court, and it makes it so by strategically picking victims and throwing a huge number of dubious patents at them. In that regard, Microsoft operates much like a patent troll. Consider Erich Spangenberg. This is the crook who used a bogus (now invalidated!) patent to blackmail thousands of companies, eventually becoming a multi-millionaire from ‘protection’ money. It ended when he picked on a victim not sufficiently frail and vulnerable, namely Newegg, which chose to fight back again and again (and won repeatedly, in spite of all the expensive appeals). Now armless, Spangenberg seems to be walking away with his loot, based on this new article from trolls’ media. It says: “The current status of IPNav – the company founded by Spangenberg back in 2003 as one of his first major forays into patent monetisation – is unclear. Spangenberg stepped down as IPNav’s CEO in 2014 to dedicate time to other projects, handing over the reins to company president Deirdre Leane. Leane’s LinkedIn profile indicates she became vice president of licensing at Technicolor in December, while IPNav’s website is currently offline awaiting relaunch.”
Technicolor has itself become a patent troll, as we noted several times this year (in January and again in February). We certainly hope that the USPTO, together with the US courts, will help curb patent trolling. More action is also required when it comes to serial patent aggressors; antitrust action may be needed against Microsoft’s crooked modus operandi. █
“That’s extortion and we should call it what it is. To say, as Ballmer did, that there is undisclosed balance sheet liability, that’s just extortion and we should refuse to get drawn into that game.”
“Microsoft is asking people to pay them for patents, but they won’t say which ones. If a guy walks into a shop and says: “It’s an unsafe neighbourhood, why don’t you pay me 20 bucks and I’ll make sure you’re okay,” that’s illegal. It’s racketeering.”
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GNU/Linux-powered devices are habitually being targeted by artsy design patents, but might this end soon?
Summary: A company which often takes pride in designers rather than developers (art, not technical merit) may lose that leverage over the competition if its questionable patents are taken away by the Supremes
THE SCOTUS, in its current composition at least (many nominations and appointments by Democrats — a trend that is now changing), has handed down some important decisions on patents over the past half a decade and most of them were favourable to patent reformers. Reformist scope-oriented measures such as restriction if not elimination of software patents are just the tip of the iceberg; a few months ago we wrote about the Lexmark case.
“This time around it’s about the second California Apple v. Samsung case (the one that went to trial in 2014, resulting in a $119 million verdict).”
–Florian MüllerFlorian Müller scooped an important story the other day. “I tried to find media reports on Samsung’s new Apple v. Samsung Supreme Court petition,” he wrote, “and couldn’t find any, so maybe I scooped’em all” with the blog post “Samsung is now taking the second Apple v. Samsung patent case to the Supreme Court”. To quote: “The first Apple v. Samsung case went all the way up to the Supreme Court and has meanwhile gone all the way back to the Northern District of California to take a new look at the question of design patent damages. But the steps to the Supreme Court are like a revolving door for this huge commercial dispute: a new petition for writ of certiorari (request for Supreme Court review) is already in the making! This time around it’s about the second California Apple v. Samsung case (the one that went to trial in 2014, resulting in a $119 million verdict).”
Someone disputed the number, saying that “it’ll actually be the third. They had another petition denied on a very technical issue.”
Müller insisted, however, that “by “second case” I meant the second case filed by Apple against Samsung in U.S. district court…”
“If this is all that Apple has left in its future plans (suing competitors), then it doesn’t look particularly bright; nor does it look innovative…”Techrights had been sceptical of Apple for a long time, even before Apple began attacking Android with patents (there was sabre-rattling even before that, e.g. against Palm). Apple and its nonsensical patents never end. Our sources at the EPO indicate that it’s not different in Europe, but we cannot publicly share any further details on that (in order to protect sources). Watch this article from CNN, published just 6 days ago. “Apple often patents interesting hardware or futuristic iPhone designs that may never see the light of day,” it says. “But in its latest patent granted on Tuesday, Apple (AAPL, Tech30) describes something a little less innovative, and already wildly popular.”
They’re ignoring prior art and also neglecting the fact that software patents are a dying breed. If this is all that Apple has left in its future plans (suing competitors), then it doesn’t look particularly bright; nor does it look innovative…
We look forward to that (potentially second) SCOTUS case which might, due to Apple, spell doom for design patents, which are often similar to software patents (in the GUI sense).
Life Technologies Corp. v Promega Corp.
“We look forward to that (potentially second) SCOTUS case which might, due to Apple, spell doom for design patents, which are often similar to software patents (in the GUI sense).”SCOTUS rulings on patents actually made a lot of headlines this past week, but this did not involve software patents or anything like that. Mayer Brown LLP, for example, wrote about Life Technologies Corp. v Promega Corp. (at SCOTUS) in lawyers’ media. “In an effort to curb efforts to circumvent patent protection,” they said, “the Patent Act imposes liability for infringement on anyone who supplies “all or a substantial portion” of a patented invention’s components from the United States for combination overseas. 35 U.S.C. s 271(f)(1). The Federal Circuit had held that a single component—in this case, of a five-component test kit—could be sufficiently important to a patented invention to constitute “a substantial portion.””
“The Supreme Court has reversed the Federal Circuit in Life Tech v Promega, ruling that manufacture and exportation of a single component of a patented invention assembled in another country is not enough for infringement in the US. However, as a concurring opinion and observers note, the Supreme Court did not indicate how much more than one is enough,” MIP wrote.
“IAM is basically ranting about this ruling because SCOTUS didn’t rule for patent maximalists.”IAM, the lobby of the patent maximalists (disguised as press whilst lobbying/preaching), wrote: “Yet again #SCOTUS left #patent community in the dark on a key part of its latest ruling” (misinformation).
Well, by “patent community” they mean something like “hedge funds of the patent world”, not a community per se. And nobody is really left “in the the dark”; it’s just a dark day for patent maximalists.
IAM is basically ranting about this ruling because SCOTUS didn’t rule for patent maximalists. To quote their blog post about it:
Seven US Supreme Court justices issued their latest patent ruling yesterday in a case that may not have been awaited with the same level of expectancy as next month’s oral arguments in the venue selection case TC Heartland, but which nonetheless showed them sticking to form. As ever with this court it was a case of what wasn’t said as much as what was outlined in the decision.
The case in question, Life Technologies Corp v Promega Corp, involved the supply of a single infringing component manufactured in the US by Life Technologies but then shipped to the UK for assembly. Promega sued citing the Patent Act’s prohibition of the supply from the US of “all or a substantial portion of the components of a patent invention” for combination abroad.
As for Patently-O, it said about Life Technologies Corp. v Promega Corp. that “[i]n a largely-unanimous opinion, the Supreme Court has ruled that the “supply of a single component of a multicomponent invention for manufacture abroad does not give rise to §271(f)(1) liability.””
“Patent maximalism is good for nobody except those who make a living from nothing other than patents (no actual invention, production and so on).”“Writing for the court,” Patently-O added, “Justice Sotomayor found that the “substantial portion” should be seen as a quantitative requirement and that a single component is not sufficient.”
The very fact that sites like IAM are upset about it should say quite clearly that it’s a good and positive development. Patent maximalism is good for nobody except those who make a living from nothing other than patents (no actual invention, production and so on). █
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Summary: Technicolor, which a lot of the media portrayed as a patent troll in previous years (especially after it had sued Apple, HTC and Samsung), is now taking action against Samsung in Europe (Paris, Dusseldorf and Mannheim)
THE USPTO has long been a provider of patents that are used against Free software, but in Europe too this has increasingly been the case. Some European companies like Nokia are nowadays attacking Free software (Android, GNU/Linux etc.) while the EPO keeps granting software patents (recall Microsoft v TomTom).
“Some European companies like Nokia are nowadays attacking Free software (Android, GNU/Linux etc.) while the EPO keeps granting software patents (recall Microsoft v TomTom).”Technicolor has become a patent troll and weeks ago its shares were collapsing (it had already shown signs of rot not too long ago), so it now attacks [GNU/]Linux-powered products of Samsung, which may be the first among several more to come. According to this from IP Wire, “Technicolor announced today that it has initiated several patent infringement suits in Germany and France against Samsung Electronics, across a range of Samsung products, including mobile phones and digital televisions.”
These mobile phones and digital televisions run Tizen and Android, which are both Linux-based operating systems.
“These mobile phones and digital televisions run Tizen and Android, which are both Linux-based operating systems.”This is definitely noteworthy and merits a post of its own. In other news, regarding PersonalWeb Tech v Apple, there is this update which suggests that PTAB, characteristically, “found the challenged claims of PersonalWeb’s Patent No. 7,802,310 obvious based upon a combination of two prior art references. On appeal, however, the Federal Circuit has vacated the judgment – holding that the Board’s factual findings were not supported by substantial evidence. In particular, the Federal Circuit could not find substantial evidence for the conclusions (1) that the prior art taught each element of the challenged claims or (2) that PHOSITA would have been motivated to combine the references to form the invention as claimed.”
The Court of Appeals for the Federal Circuit (CAFC) rarely interferes and even less frequently disagrees with PTAB (only about 20% of the time in 2016). We hope that in the case of Samsung Electronics, a case which is centered around central Europe (France and Germany, or Paris, Dusseldorf and Mannheim in the absence of a UPC disaster), pertinent patents will be challenged. If not, then we can expect Technicolor to become more of a serial litigator. █
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Apple has still not managed to convert its patents into a cash cow and a barrier to Android takeover
Summary: Apple and Samsung are still losing money in court (lawyers are paid ad infinitum) and the only firm that gets away with a lot of money is Qualcomm, Microsoft’s patent trolling notwithstanding
PATENTS in the area of mobile technology have become a hefty tax that raises the price of phones to incredible levels. Some of these patents — but not all — are software patents and many are standard-essential (SEPs), so they cannot be worked around. We recently wrote about this in the context of Qualcomm. “Apple may have paid Qualcomm approx. $40 per iPhone,” Florian Müller wrote the other day, and it “accounted for third of Qualcomm’s revenues…”
“If you consider some of it speculative, that’s fine, but someone has to do the job of trying to infer and deduce information even in the early stages of a dispute.”
–Florian MüllerThis became a blog post of his (after he had ranted on the subject)), in which he stated: “At the end of my previous post on Qualcomm’s business model I wrote I would follow up with an analysis of the economic magnitude of the various antitrust investigations and civil complaints concerning Qualcomm’s two mutually-reinforcing business areas, baseband processor chipsets and wireless standard-essential patent licensing. While it will probably take a while before a publicly-accessible court filing by either Qualcomm or Apple makes reference to a particular damages claim or royalty rate, some information is already available and I’ll take the liberty of connecting some dots. If you consider some of it speculative, that’s fine, but someone has to do the job of trying to infer and deduce information even in the early stages of a dispute.”
A separate post of his deals with Apple’s case against Samsung getting “back to where things started” — an issue that Professor Dennis Crouch too has covered as follows:
In a non-precedential decision, the Federal Circuit has remanded this design patent damages dispute back to the district court reconsideration. The basic question is whether the patented “article of manufacture” (which serves as the basis for profit disgorgment) should be the entire article sold to consumers or some component of that whole. A patentee would obviously prefer the whole-article basis because it would result in a greater total-profit award. In Samsung Elecs. Co. v. Apple Inc., 137 S. Ct. 429 (2016), the Supreme Court held that the statute is broad enough to encompass either the entire-article or simply a component. However, the Court refused to provide any guidance as to how to determine the appropriate basis in any particular case (including this case involving Apple’s iPhone design patents).
There have been some reports about this in the press. It shows that half a decade later Apple is still not making much progress in its patent war against Android (only the lawyers are winning). Apple is now relying on fake news to keep up appearances and give an illusion of growth. █
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